Customer issued court proceedings against us (small family run garage)

[SuperVillain]

For something like a DQ they usually give the offending party a further 7 or 14 days to file after which the claim is struck out.

[AndyOrch]

For something like a DQ they usually give the offending party a further 7 or 14 days to file after which the claim is struck out.

 

 

True and probably will be...the court staff usually generalise.

[SuperVillain]

True and probably will be...the court staff usually generalise.

 

I've forgotten to file a DQ before lol...

[Emz0305]

I suppose they probably will give him a further 14 days, even though he's already had an extra 15 days since the 17th lol not sure how he could forget especially since we served him ours, you'd think that might jog his memory that he needs to send off his DQ and pay his allocation fee lol

[AndyOrch]

I have 5 General Orders in front of me for the very same thing all state 7 days....all different courts.

[Emz0305]

Will wait and see what the judge decides, with a bit of luck he will be sick of giving the claimant more time. It took him nearly 4 months to serve POC. Will update when I hear more, thanks everyone.

[andydd]

Judges often give LiPs quite a bit of leeway, I myself had my freeholders claim against me struck out for non payment but he did has a solicitor and I don't think the judge was impressed by his excuse that he was busy and under pressure. You could force the issue with starting a strike out claim possibly summary judgement but it will cost and carry some risk best to just leave it, it sounds like his claim will fail....eventually !

[Emz0305]

It's been a week and still not heard anything from the court??

[andydd]

They are always rather slow !

[Emz0305]

A bit confused. Had a letter from the court today. Notice of trial. Ordering the claimant to pay £170 by 28th may. What I don't understand is that as far as I was aware, claimant hadn't even filed his directions questionnaire and paid his £40 allocation fee when I last spoke to the court and it was 2 weeks past the deadline. Since then I've heard nothing until this. So, still not been served a copy of the directions questionnaire. If the court had sent him out a reminder wouldn't we have been served a copy too?

[Mike_hawk]

Hi Emz

 

Probably best to check with the court........ can only guess that he filed late and failed to serve DQ on you, wouldn't be the first time he's been a little tardy.

[Emz0305]

Right, I've just got off the phone to the court, and the very nice man on the phone informed me that the case was referred up to the judge after my phone call on 2nd May and for some reason the judge has sent the case straight to trial date.

 

The man informed me that the claimant has still not filed his directions questionnaire and also the £40 allocation fee is still outstanding. What a joke!!

 

He advised me that we can write a letter to the court and it will be referred up to the judge and to maybe mention the fact that the claimant has not filed a DQ or paid his £40 allocation fee.

 

Can anyone advise what I should do next?

[Mike_hawk]

I suppose the dj could dispose of the need for dq's hence continue without the allocation fee but that appears contrary to the order in March. The court should really be disposing of this...... I'd write, reminding it of the claimants failings and asking it to strike out the case. It's got 2 options, either it will or it won't. If it declines you'll probably receive the usual bunkum along the lines of 'District judge xxxx has considered the request and states the defendant should file an application [with the required fee]'

[Emz0305]

Thanks Mike. Any idea's on what I should include in this letter and how it should be set out etc? Want the best possible chance of a strike out and I think in my own words I won't get that lol

[Mike_hawk]

Just set it out as you would a witness statement, bullet points identifying the claimants failings and a request asking the court not to grant the claimant any further relief and to dispose of the case.

 

Type something up and we can have a tinker with it before you send

[andydd]

This is rather silly, there can possibly be no trial if the fee isnt paid..and it should of been struck out by now.

 

Alas there are only two options.

 

1) You make a formal application to strike out but there will be a fee to this.

 

2) The other option is for the court to strike out of its own initiative, in my opinion they rarely do this, prob because there is no one person with a full understanding of the case (except you), all you can do is write to the court and flag up all the issues and hope they take notice.

[Emz0305]

Just typing up the letter and on looking at the March order which asks for the DQ's and the allocation fee, it states at the bottom.

..................................

4. By the same date, the allocation fee of £40 is due. This is payable by the claimant, unless proceeding on a counterclaim only.

 

Following further notice, if the allocation fee is not paid by the due date the claim will be automatically struck out.

.....................................

 

?????

What does it mean by 'Following further notice'?

[Emz0305]

This part of the Practice Direction explains all about non payment of fees. It again states that if fee's are not paid by the due date the claim with automatically be struck out, but this has not happened??

 

Sanctions for non-payment of certain fees

3.7

(1) This rule applies where –

(a) a directions questionnaire or a pre-trial check list (listing questionnaire) is filed without payment of the fee specified by the relevant Fees Order;

(b) the court dispenses with the need for a directions questionnaire or a pre-trial check list or both;

© these Rules do not require a directions questionnaire or a pre-trial check list to be filed in relation to the claim in question;

(d) the court has made an order giving permission to proceed with a claim for judicial review; or

(e) the fee payable for a hearing specified by the relevant Fees Order is not paid.

(Rule 26.3 provides for the court to dispense with the need for a directions questionnaire and rules 28.5 and 29.6 provide for the court to dispense with the need for a pre-trial check list)

(Rule 54.12 provides for the service of the order giving permission to proceed with a claim for judicial review)

(2) The court will serve a notice on the claimant requiring payment of the fee specified in the relevant Fees Order if, at the time the fee is due, the claimant has not paid it or made an application for full or part remission.

(3) The notice will specify the date by which the claimant must pay the fee.

(4) If the claimant does not –

(a) pay the fee; or

(b) make an application for full or part remission of the fee,

by the date specified in the notice –

(i) the claim will automatically be struck out without further order of the court; and

(ii) the claimant will be liable for the costs which the defendant has incurred unless the court orders otherwise.

(Rule 44.9 provides for the basis of assessment where a right to costs arises under this rule and contains provisions about when a costs order is deemed to have been made and applying for an order under section 194(3) of the Legal Services Act 20071)

(5) Where an application for –

(a) full or part remission of a fee is refused, the court will serve notice on the claimant requiring payment of the full fee by the date specified in the notice; or

(b) part remission of a fee is granted, the court will serve notice on the claimant requiring payment of the balance of the fee by the date specified in the notice."; and

(6) If the claimant does not pay the fee by the date specified in the notice –

(a) the claim will automatically be struck out without further order of the court; and

(b) the claimant will be liable for the costs which the defendant has incurred unless the court orders otherwise.

(7) If –

(a) a claimant applies to have the claim reinstated; and

(b) the court grants relief,

the relief will be conditional on the claimant either paying the fee or filing evidence of full or part remission of the fee within the period specified in paragraph (8).

(8) The period referred to in paragraph (7) is –

(a) if the order granting relief is made at a hearing at which the claimant is present or represented, 2 days from the date of the order;

(b) in any other case, 7 days from the date of service of the order on the claimant.

[Mike_hawk]

Just typing up the letter and on looking at the March order which asks for the DQ's and the allocation fee, it states at the bottom.

..................................

4. By the same date, the allocation fee of £40 is due. This is payable by the claimant, unless proceeding on a counterclaim only.

 

Following further notice, if the allocation fee is not paid by the due date the claim will be automatically struck out.

.....................................

 

?????

What does it mean by 'Following further notice'?

 

It just means the other side will get a reminder and a short extension to file the fee........ doesn't appear that has happened hence the need to remind the court of the claimants failings. You shouldn't have to but if you let it go now it'll drag on even longer

[Emz0305]

So should it have even been escalated to a Trial date without the allocation fee being paid?

[Mike_hawk]

So should it have even been escalated to a Trial date without the allocation fee being paid?

 

Yes and no..... yes, the terms of the order should have been applied.... and no, the court has discretion to dispose of the need for dq's. If the result of the previous hearing was to allocate to sct then I can't really see there was a need to exchange dq's

[Emz0305]

This is a quick copy and paste of the letter so far. Can you give me honest opinion and tell me what I should remove or include. Maybe some more big words might help? lol

 

 

1. I, , of , , , , am the defendant in this case. The facts in this statement come from my own personal knowledge.

 

2. At the beginning of April I received from the court a 'Notice of Proposed Allocation to the Small Claims Track. In this notice it was ordered that both parties by 17 April 2014, file with the Court the 'Small Claims Directions Questionnaire' and also to serve copies on both parties. I filed my Directions Questionnaire well withing the time limit and I also served a copy on the claimant.

 

3. On 2 May 2014, as I had not heard from either the Court or the claimant, and had not been served a copy of the claimants Directions Questionnaire, I decided to enquire at the court to find out what was happening with the claim. I learned that the claimant had not filed his Directions Questionnaire or paid his £40 allocation fee. The court advised that the file would be referred up to the judge for a decision.

 

4. On 14 May 2014 I received from the court 'Notice of Trial Date'. I had still not been served a copy of the claimants Directions Questionnaire, I decided again to enquire with the court. I learned that the claimant had not filed a Directions Questionnaire but the case had still been advanced to trial. I also learned that the claimant has still not paid the £40 allocation fee due to the court. In the Notice received from the Court and dated 31 March 2014, the court ordered that the allocation fee of £40 was to be paid by 17 April 2014. It also stated 'Following further notice, if the allocation fee is not paid by the due date, the claim will be automatically struck out'.

 

5. I feel that from the start of this claim, the court has granted the Claimant more than enough relief from sanctions. I myself have followed proceedure and complied with all of the courts orders and I find it unfair that such relief would continue to be granted to the claimant. I would therefore like to ask that the court does not grant the claimant any further relief from sanctions and that the court uses it's own initiative to strike out this claim persuant to Practice Direction 3.4 (2)©.

 

6. I believe that the facts stated in this witness statement are true.

 

 

Signed:

 

Dated:

[Emz0305]

Yes and no..... yes, the terms of the order should have been applied.... and no, the court has discretion to dispose of the need for dq's. If the result of the previous hearing was to allocate to sct then I can't really see there was a need to exchange dq's

 

This is what I don't get Mike, it had already been allocated to the small claims track previously. Just looking for the relevant order now.

[Emz0305]

Found the order dated 29 January.

 

Notice of Allocation to the small claims track.

 

Deputy District judge blah blah has considered the statements of case and questionnaires files and allocated the claim to the small claims track.

 

The Full order is attached somewhere on this thread.

[Mike_hawk]

Looks good to me Emz, add a little more background at the beginning though. Just a brief timeline of events from the non service of claim to the set aside. You need make it clear to anyone reading the w/s that this is not his only failing.

 

At #5 make reference to the fact that the claimant has not applied for relief from sanction in accordance with CPR 3.9 and you feel that the claimants tardiness is presenting you with the disproportionate costs of defending a claim without merit.